Tolbert v. Caledonian Ins. Co.

• Citation: 28 S.E. 991,101 Ga. 741
• Parties: TOLBERT v. CALEDONIAN INS. CO.
• Decision Date: 10 July 1897
• Court: Supreme Court of Georgia

28 S.E. 991

101 Ga. 741

TOLBERT v. CALEDONIAN INS. CO.

Supreme Court of Georgia

July 10, 1897

Syllabus by the Court.

Where it is sought to recover damages in consequence of the commission of a fraud, the plaintiff must not only plead and prove the damage, but also the fraud from which such damage results, and a declaration counting upon such a cause of action, which does not allege such facts as would in law amount to a fraud upon the part of the defendant, sets forth no cause of action, and consequently its dismissal upon a general demurrer is not error.

Error from superior court, Chatharn county; R. Falligant, Judge.

Action by Epsy Tolbert against the Caledonian Insurance Company to recover for fraud in the issuance of an insurance policy. From an order sustaining defendant's demurrer to the petition, plaintiff brings error. Affirmed.

Saussy & Saussy, for plaintiff in error.

Denmark Adams & Freeman, for defendant in error.

LITTLE J.

The official report states the facts. The court below treated the petition as a suit on a policy of fire insurance, and sustained a demurrer filed by the defendant on the grounds that, by the terms of the contract attached to the petition no action could be maintained unless commenced within twelve months next after the fire occurred, and because the petition set out no cause of action. The plaintiff in error insists that the court below misunderstood the nature of the case presented in the petition, and avers it to be an action seeking to recover damages from the defendant for fraud perpetrated upon the plaintiff in issuing to her a policy of fire insurance, and receiving premium therefore, when the policy was absolutely void in the hands of the plaintiff as an indemnity for a loss by fire. Without this assurance on the part of the plaintiff, we would probably have put the same construction on the petition. Taking the construction, however, placed upon it by the defendant, we are to inquire whether the demurrer filed is good on the ground that it fails to set forth a cause of action, as ruled by the court below.

The charge against the defendant is that it issued to the plaintiff a policy of fire insurance which contained certain limitations and conditions that in fact rendered the same void to accomplish the purpose of insurance as to her property; that she is uneducated and illiterate; that she was ignorant of the requirements contained in the policy of insurance, and was under a belief that, where property was owned by a person and the premium paid, a policy would protect the owner during its existence against loss to the amount stipulated; that it was delivered to her without any information as to its contents; that it was not read to her and none of the conditions or stipulations were communicated; that since her loss by fire, and the refusal of the defendant to pay, she first learned what were the conditions of the policy, and that the attempt of the defendant to shield itself under the conditions and limitations of the policy operates as an injustice to her, and gives the defendant an unconscientious advantage over her; that she would readily have communicated any and all facts concerning the risk had she been interrogated in reference to the same, etc. It seems that the naked proposition for which the plaintiff contends is that, having paid the premium for a policy insuring her house, it is a fraud on...